Constitutional Dictatorship

Crisis Government in the Modern Democracies

Clinton Rossiter

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351526388
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

How should the United States be governed during times of crisis? Definitely not as we are in times of tranquility, asserts this classic study. The war on terrorism is a case in point. The horrors of terror attacks on the United States have forced Americans to accept legislative changes that might be unthinkable at other times. The "inescapable truth, " Clinton Rossiter wrote in his classic study of modern democracies in crisis, is that "No form of government can survive that excludes dictatorship when the life of the nation is at stake."

Part One
CONSTITUTIONAL DICTATORSHIP IN THE GERMAN REPUBLIC

THE example of Rome, a republic which made specific provision in its constitution for the establishment of a dictatorship in time of national emergency, finds its most authentic modern parallel in the history of the ill-fated German Republic of 1919-1933. No constitutional democracy can compare with Weimar Germany in the varieties of its dictatorial experience—in its need for emergency government, in the frequency and consequence of its resorts to such government, or in the scope of constitutional provision therefor. This being Germany, theory kept pace with fact. The quantity of juristic discussion of the German constitutional dictatorship was prodigious. That the German Republic is dead and buried does not lessen, but rather enhances the importance of this study. There is much to be learned from its calamitous history, especially in the matter of constitutional emergency powers. A study of modern constitutional dictatorship could not possibly ignore the crisis history of the German Republic. This is particularly true because the techniques of constitutional dictatorship which had been designed and evolved for the defense of the Republic were in the end to play a considerable part in its destruction.

The most logical introduction to such a study is a glance at the "dictatorship article" of the Weimar Constitution itself, the famous Article 48.

If a state does not fulfill the duties incumbent upon it under the national Constitution or laws, the President of the Reich may compel it to do so with the aid of the armed forces.

If the public safety and order in the German Reich are seriously disturbed or endangered, the President of the Reich may take the measures necessary to the restoration of the public safety and order, and may if necessary intervene with the armed forces. To this end he may temporarily suspend in whole or in part the fundamental rights established in Articles 114 (inviolability of person), 115 (inviolability of domicile), 117 (secrecy of communication), 118 (freedom of opinion and expression thereof), 123 (freedom of assembly), 124 (freedom of association), and 153 (inviolability of property).

The President of the Reich must immediately inform the Reichstag of all measures taken in conformity with sections 1 or 2 of this Article. The measures are to be revoked upon the demand of the Reichstag.

In cases where delay would be dangerous, the state government may take for its territory temporary measures of the nature described in section 2. The measures are to be revoked upon the demand of the President of the Reich or the Reichstag.

A national law shall prescribe the details.

A few salient facts about Article 48 as an instrument of emergency government should be presented at this point. In the first place, despite recurrent proposals in the Reichstag as well as in academic and journalistic circles, the final sentence of this article was never acted upon, and throughout the history of the Republic Article 48 was the only written law on constitutional emergency powers. The definition of what could be regarded as "necessary measures" or a serious disturbance of "the public safety and order in the German Reich" was left to the President and his Cabinet. The absence of this supplementary law had no negative effect on Article 48 as a basis for emergency action; it was well understood that the government could act upon its authority alone.

Secondly, Article 48, because of its broad terms and the lack of a qualifying law, became the foundation for all sorts and degrees of constitutional dictatorship. In general, the types of crisis comprehended may be confined to two categories: the state of political disturbance (civil insurrection), for which Article 48 served as authority for measures reminiscent of the imperial or Prussian state of siege; and the state of economic disturbance (inflation, depression), for which it provided an emergency executive lawmaking power, a full-blown Notverordnungsrecht. Needless to say, Article 48 also stood ready for use in the event of a foreign war. Nowhere has the emergency power to overcome severe economic distress been more closely tied in with the power to abate the crises of war and rebellion. Article 48 was an inexhaustible reservoir of emergency power.

Thirdly, it is important to note that the ministerial countersignature of "all ordinances and orders" of the President of the Reich was established as a controlling principle of the German constitutional scheme by Article 50 of the Constitution. This served to make the use of Article 48 a group proposition and gave the Reichstag a further check upon it. It should be made clear, however, that the dictatorship was primarily a presidential prerogative. Without his consent the Cabinet had no power whatsoever to use Article 48; without the Cabinet's approval the President's prerogative was equally useless.

Finally, it is obvious that other articles of the Constitution conditioned the use of the dictatorship article—for example Article 54, which stated: "The Chancellor of the Reich and the Ministers require for the conduct of their offices the confidence of the Reichstag." It was a grant of extraordinary power to the executive branch of the government to be exercised within and in behalf of the constitutional scheme. The protection of the Republic was its sole purpose.

CHAPTER III
Article 48 in the Early History of the Republic

THE life and death of the German Republic is in no small part a story of the use and abuse of Article 48 of the Weimar Constitution. In the thirteen-odd years of a constitutional Germany, recourse was had to this provision on more than 250 separate occasions,¹ and in the last of those years government in Germany functioned by virtue of the constitutional dictatorship alone. It is the purpose of the next two chapters to examine Article 48 as it was actually put to work in the German governmental framework. Its historical significance and its merits and demerits as a unique instrument of emergency government should in this way become apparent.

Article 48: Genesis and Background

ALTHOUGH the decision of the Weimar Assembly to introduce an emergency dictatorship into the new Constitution evoked considerable thought and discussion among the large proportion of scholarly delegates, Article 48 in its final form was more influenced by the circumstances of the year 1919 and by previous German experiences with emergency government than by any theoretical consideration of this problem. The question may well be asked: how was it that this democratic Assembly should have inserted in this democratic Constitution a governmental device copied from the "state of war" (Kriegssustand), one of the most autocratic institutions of the late and unlamented German Empire? The answer is plainly that Article 48 arose "out of the necessity of the time." As one of the sponsors of the dictatorship article stated before the constitutional committee:

"This power goes very far. But when we consider the events of these days, we shall find that this power is born out of the necessity of our time. It gives to the President a strong weapon which we cannot renounce under any circumstances. I welcome this strengthening of the presidential power most heartily."²

"The events of these days" to which he was referring are too well known to be repeated here. Virtual anarchy reigned in large portions of Germany, separatist movements and provincial rebellions threatened to dismember completely the bleeding corpse of the Reich, the spirit of the people lay broken beneath the vain sacrifices and hardships of the previous five years, extremists of right and left ran riot in their efforts to establish state and local governments of their own tastes, the allied blockade continued unabated, inflation had already begun its infinite skyward spiral, and unemployment was reaching threatening heights with the abandonment of war industries and the Heimkehr of the soldiers. Germany had indeed fallen upon evil times. It may well be doubted whether any republic was ever founded under more sinister and intractable conditions.³

It was under these conditions that the German National Assembly, chosen by the most democratic suffrage the world had ever known, met in Weimar on February 6, 1919.⁴ One of the chief reasons for the selection of the town of Goethe and Schiller was the comparative quiet which it offered, in contrast to the turbulent extremities into which other and larger German cities had been plunged. Like the American fathers of 1787, the German fathers of 1919 did their work in peace, but it was the peace that exists in the middle of the maelstrom. The country was in an uproar, and it was thus inevitable that the problem of emergency powers should have received particular attention in the Assembly. The keynote of the debates was the hazardous state of the times, and therewith the necessity of government not only democratic, but strong. Not the least element of this democratic strength was to be a powerful executive. From the revolution of November 1918 until the establishment of the provisional constitution on February 11, 1919, Fritz Ebert and a small coterie of Social Democrats, attempting to fill the political vacuum left by the departure of the imperial government, had been forced in crisis situations to exercise dictatorial power without firm basis in the law. Now it became the purpose of the delegates at Weimar to provide a crisis dictatorship of a legal nature, and this was to be done in behalf of democracy and the Constitution. Despite the embittered opposition of the extreme left wing, a presidency was instituted which, although not the equal of the office of President of the United States, outstripped the French presidency in prestige and competence.⁵ And to this chief executive, who was to govern in conjunction with a responsible cabinet, was given this unique grant of emergency powers.

The desire for a strong executive and the demand for adequate emergency powers were thus two answers to the same problem.⁶ Article 48 became the particular concern of Professor Hugo Preuss, the "Father of the German Constitution." In the first draft of a constitution which he had been commissioned to lay before the Assembly, there appeared provisions similar to Article 48, and it was an easy task for Preuss and his followers to overcome the opposition expressed to the proposed emergency article. For the most part, discussion in the Assembly ignored the dangerous possibilities inherent in this clause and centered about the single feature of Reichstag control over presidential action. It was by a decisive majority that Article 48 was placed in the new German Constitution. The stress of the times had forced men to whom arbitrary government had been lifelong anathema, to put into their model charter a device of emergency government that was a relic of the past and a possible platform for despotism. It was their hope and somewhat overconfident expectation that only good democrats devoted to the cause of the Republic would ever be in a position to resort to this unusual fund of power. The pointed remarks of the leader of the Independent Socialists, Dr. Cohn, in which he lashed out at the complacency of the Assembly in assuming that a man true to the democratic cause and advised by a democratic cabinet would always occupy the presidential office, carried no weight. In 1932 his words were to stand as a remarkable and fatal prophecy, but in 1919 it was the belief of most of the delegates that the constitutional dictatorship was, in the words of Dr. Preuss, safely "built into the framework of the constitutional state."

Article 48 found its genesis in the events of 1919; it found its source in German history. The members of the Assembly were quick to make use of provisions that might be borrowed with profit from their old constitutions. Once a decision had been reached to provide for a constitutional dictatorship, they resorted willingly to an examination of imperial forms as models for the proposed article. In the development of the Empire and its member Länder as constitutionally governed states, the use of emergency powers had been well established, and this example was not overlooked by the hard-pressed delegates at Weimar.

The chief emergency institution of imperial Germany had been the Kriegszustand or state of war, a standard form of constitutional dictatorship modeled directly on the French state of siege, although with certain alterations in keeping with the more autocratic character of the German Empire. A similar device was to be found in the various state constitutions, the Belagerungszustand or state of siege. Article 68 of the imperial Constitution was the basis for the state of war:

The Kaiser can, if the public safety in the federal territory is threatened, declare the state of war in any part thereof. Until the enactment of an imperial statute regulating the conditions, the form of the proclamation and the effects of such a declaration, the provisions applying thereto shall be those of the Prussian statute of June 4, 1851.

No imperial statute was ever enacted, arid this Prussian law of 1851 continued in force until the demise of the Empire.⁷ It regulated carefully the form of the proclamation, the suspension of certain rights, and various other effects of the state of war. The proclamation of the state of war by the Kaiser resulted in the establishment of military courts for the trial of specified crimes, the suspension of numerous fundamental rights and most of the usual checks upon governmental action, and the transfer of executive powers from civil to military authorities. In the initiation of such measures the Kaiser was irresponsible, acting not as head of the state but as commander in chief of the armed forces. The stamp of the military was plainly affixed to the imperial Kriegssustand. In the state of war or siege pure and simple, the military always took control, but there was a lesser degree of the Prussian institution, the "minor" state of siege, in which such action was merely threatened, and all measures continued to be taken by the ordinary authorities.

In the forty years before 1914 there were but two occasions for the use of the state of war. However, in the four years of Germany's mighty war effort the state of war was resorted to with increasing frequency, particularly against left-wing elements obstructing this effort by word or deed. This brought the institution into disrepute with all liberal elements in the Reich. The leaders of the great Kiel mutiny of October 30, 1918 prop...

Table of contents

• Cover
• Half Title
• Dedication
• Title
• Copyright
• Contents
• INTRODUCTION TO THE TRANSACTION EDITION
• PREFACE TO THE 1963 EDITION
• PREFACE
• I. CONSTITUTIONAL DICTATORSHIP.
• II. THE ROMAN DICTATORSHIP.
• PART I: CONSTITUTIONAL DICTATORSHIP IN THE GERMAN REPUBLIC
• PART II: CRISIS GOVERNMENT IN THE FRENCH REPUBLIC
• PART III: CRISIS GOVERNMENT IN GREAT BRITAIN
• PART IV: CRISIS GOVERNMENT IN THE UNITED STATES
• INDEX